Critics say state 'sunshine' law among weakest in the country

In Fall River area, Open Meeting Law complaints have resulted in zero penalties since 2010

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By Christian SchiavoneThe Patriot Ledgerwith Herald News reports

The Herald News, Fall River, MA

By Christian SchiavoneThe Patriot Ledgerwith Herald News reports

Posted Mar. 19, 2014 at 12:21 AM
Updated Mar 19, 2014 at 12:32 AM

By Christian SchiavoneThe Patriot Ledgerwith Herald News reports

Posted Mar. 19, 2014 at 12:21 AM
Updated Mar 19, 2014 at 12:32 AM

» Social News

If a public board gets caught holding a meeting without having posted the time and location beforehand, its members will probably get off with a warning.

If they shut out the public when they shouldn’t or deliberate via email, they might have to take a refresher course on the state’s Open Meeting Law.

And if they deliberately skirt the law, which is intended to ensure that the public’s business is done in public, the board — but not the individual members — could face a $1,000 fine. But that almost never happens.

The Patriot Ledger looked at more than 500 Open Meeting Law complaints — the bulk of them from small towns — filed with the state attorney general’s office since that agency took over enforcement of the law in 2010. The office found that public boards had violated the law in 221 cases, but only three of them were fined. Most others received warnings, even in cases of what the office deemed to be serious violations of the public’s right to know.

And that is the case in the Fall River area.

Based on 16 complaints filed between 2010 and 2014, none resulted in financial penalties.

The complaints were mostly filed against officials in the town of Swansea, with most, if not all, likely the result of complaints filed by former Recreation Commission member Patrick Higgins.

During the review period, nine complaints were filed against Swansea boards, while four were issued in Freetown and two were filed in Somerset. Not that all of the complaints were founded with nearly a third of the complaints declined for various reasons.

Open-government advocates say that illustrates their criticism that four years after being overhauled, Massachusetts’ “sunshine” law remains among the weakest in the country.

“Effectively, there’s no stick in the law” to make boards comply, said Walter Robinson, a journalism professor at Northeastern University and director of the university’s First Amendment Center. “There’s no downside for public officials to violating the Open Meeting Law. As a result, public officials can screw the public any time they want.”

Massachusetts adopted its first Open Meeting Law in 1958. The law requires public bodies, such as boards of selectmen, town councils and school committees, to hold meetings in public unless they are discussing topics that fall under a strict set of exemptions — contract talks with unions and ongoing litigation, for example. Boards must also post notices about upcoming meetings, including lists of what they plan to talk about.

The state Legislature exempted itself from the law.

Lawmakers updated the statute in 2009, moving responsibility for enforcement from the local district attorneys to the attorney general in July 2010. The rationale was to provide more consistent enforcement and wider education.

Page 2 of 3 - But critics say the reform weakened the law by allowing fines only in cases of a board intentionally violating the law. The previous law did not have that requirement.

“That’s a major weakness,” said state Rep. Antonio Cabral, D-New Bedford, who has filed legislation to take out that requirement and allow for tougher fines, including on individual board members. “It’s a high threshold, and I don’t know how you meet that. It’s important to have some provisions in place to create some teeth.”

Since 2010, that threshold has only been met in three cases, all of them in 2011. The boards of selectmen in Otis, Wayland and Blandford were fined for deliberately meeting outside of posted public meetings.

The attorney general’s office found “serious” violations in cases involving the Sterling Personnel Board and the Southeastern Regional Planning and Economic Development District Board of Commissioners in 2013, both involving holding closed-door sessions to discuss complaints against an employee without notifying the employee. In both cases, the office warned the boards to comply with the law in the future and to do additional training on the law, but it stopped there because the boards had taken corrective steps on their own.

Some of the most frequent violations found include board members sharing personal opinions on matters before them by email, not keeping or releasing meeting minutes, failing to properly post meetings and violating the rules for going into a so-called executive session — a session closed to the public.

Attorney General Martha Coakley’s office declined a request for an interview with her. Spokeswoman Emalie Gainey said in a statement that the office has made enforcement a priority.

“Our office assumed enforcement of the law in 2010, and we believe that since then, our efforts have helped promote the key objectives of the Open Meeting Law — good governance and transparency,” Gainey said.

Defenders of the current law include the Massachusetts Municipal Association and the Massachusetts Municipal Lawyers Association, which say most of the violations are minor and attributable to misunderstandings of the law by well-meaning public servants.

“To fine people who are trying to do the public’s business when they make a de minimis error of that nature is overboard and would be counterproductive to encouraging public participation,” said James Lampke, executive director of the lawyer’s association and Hull’s town attorney.

But some residents who have gone through the complaint process say it’s just the opposite — that a weak Open Meeting Law makes the public less likely to speak up about possible violations.

“They (the attorney general’s office) have no backbone at all to go after people,” said Robert Belbin of Carver, who has filed numerous complaints. “If you see something wrong, you’ve got to stand up say something.”

Page 3 of 3 - For more information about individual Open Meeting Law cases, go to oml.ago.state.ma.us.